7 ms·

Dear tech giants, if you love someone set them free

85 points by polmolea 11y ago

lighthawk 11y ago
I thought that the way you solve this in the states is by setting up an LLC and copyrighting under your LLC all of the code you write during hours you are not working for the other company. Doesn't that provide adequate additional protection? The strict IP agreements I've signed usually exclude work done for other companies.
- jfim 11y ago
  Some contracts have a clause where you work exclusively for this employer.
  - lighthawk 11y ago
    Yes, but if they enforce that, they might fire you but they won't be able to take your IP away. Not if they exclude the IP you produce for other companies as part of the IP agreement.
  - binarycrusader 11y ago
    Often referred to as a 'moonlighting' clause and by lawyers as 'duty of loyalty'.
    - JustSomeNobody 11y ago
      Love how loyalty only works one way.
      - savanaly 11y ago
        When you sign up to work for the company, you agree to do X and they agree to pay you Y. You are disloyal to them if you don't do all or part of X (for instance, if X includes thinking up ideas for them, taking your really valuable ideas that you thought up while working for them and leaving and using them yourself), and they are disloyal if they don't pay you Y. Those are the terms, after all! So I don't see how loyalty only goes one way...
        Karunamon 11y ago
        If I'm at home, on my own computer, on my own time, I am not "working for them".
        JustSomeNobody 11y ago
        If they don't have an impressive QER, I get axed. That's what I mean.
codingdave 11y ago
If you sign a contract that makes all your ideas the property of the company you work for, that is a problem. But I suggest pushing back on that contract - ask them to take out those clauses. If they say no, you then get to decide if it is a deal-breaker for you or not. But I suspect most of the time, they will work with you.
- vvanders 11y ago
  I think you'll find for large tech giants(like referenced here) they won't budge unless you're Carmack or someone high profile.
- iraphael 11y ago
  >they will work with you Not so sure about that... Tech giants have the advantage of being able to pick from the best applicants out there. In the same way you could say "having these clauses is a deal breaker for me", it's very easy for them to say "NOT having them is a deal breaker for US". The difference is that if you refuse the offer, you still have to find a jobs elsewhere (and I suspect that most giants will have the same clauses by default). But if they refuse the offer, there is already someone being interviewed that will accept the clauses. Maybe I'm being pessimistic, but I think that unless these clauses are deal breakers for most developers out there, then this practice will continue to be done.
  - codingdave 11y ago
    Maybe, but in that case HN seems like the perfect community to take a stand and start telling developers not to sign those contracts.
    - iraphael 11y ago
      True. And I applaud the effort. I just think that, in most cases, they won't work with you in this area. So when telling developers to take a stand, we should also prepare them for what is most likely going to happen when they do.
  - 11y ago
rm_-rf_slash 11y ago
This model works perfectly fine in higher education, as does the idea that if you treat employees as people to be invested in and cut some slack when their life doesn't align perfectly with your plans, they reward you with creativity, energy, and loyalty. I like Elon Musk and the work that he does, but chewing out an employee for skipping out on work to witness their child's birth is more than enough reason to never work for a person like that.
- aianus 11y ago
  FWIW he explicitly claims he never did this (while admitting to other extreme behavior towards his employees): https://twitter.com/elonmusk/status/598065854736044032 https://twitter.com/elonmusk/status/598065854736044032 Frankly, I'm inclined to believe him given that he has five children of his own.
Terr_ 11y ago
> But for the duration of your employment, all your ideas belong to them. Only in certain states, and I only if you sign such a contract. Did the author actually read his contract and say: "Please remove this part"? I know California and Washington both have state laws limiting what companies can do in terms of taking ownership of your "outside" work.
- johnward 11y ago
  A lot of us work oustside of those areas. In my case we got acquired. My choice was to keep steady employement or become unemployed for some unknown time. I took the risk and signed. Then things like this happen:http://www.goodwinprocter.com/News/Press-Releases/2011/Court-Rules-IBM-Owns-Patents-Obtained-by-Former-Employee.aspx http://www.goodwinprocter.com/News/Press-Releases/2011/Court...
  - brazzledazzle 11y ago
    Since that was written by the law firm representing IBM it's probably the most charitable interpretation you're going to get and I'm still disgusted by it.
    - astazangasta 11y ago
      Everyone involved in that story sounds like a terrible person. Some day very soon, I hope, the notion that an individual can own an idea and control its usage will be regarded as despicable. What an evil thought.
- cbhl 11y ago
  I've definitely had prospective employers say "no, we will not remove that part, because we've been burned by bad employees before".
- jofer 11y ago
  Good luck getting a company or "remove this part" of a contract. I've always been told very clearly and angrily that that was not up for discussion. My current employer technically forbids me from showing photographs of my dog to my mom. Naturally, no one would ever care if I did, but my contract explicitly considers any distribution of anything I produce that can be copyrighted (at work or not) an act corporate espionage.
caust1c 11y ago
Since it's inevitably brought up every time this topic arises: This is one of the reasons why California is still such a popular place to do business because the law explicitly nullifies those provisions in contracts. See California Labor Code Sec. 2870 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...
- iraphael 11y ago
  How does this work when companies have an "open" culture (aka: every employee has access to most of the codebase)? Wouldn't that meant a side project you are working on is, indirectly, a... > Result from any work performed by the employee for the employer?
  - jsprogrammer 11y ago
    How does open access to the code base imply that side projects are work performed for an employer?
  - bad_user 11y ago
    Even so you can only prove that by means of copyright, patents or trademarks, collectively known as "IP" laws and in spite of popular opinion, that's a hard thing to do.
- 7Figures2Commas 11y ago
  The devil is in the details and it's worth reading the following text closely: Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. 2870 provides a lot of protection to employees who are very careful but a lot of employees are not careful enough to meet the criteria above.
kylnew 11y ago
Employers are, by default, going to look out for themselves. I'd argue that the onus is on the developer to understand and fight for better contracts. If more developers were taking these matters seriously then companies would have to respond. However, I doubt they'll be making the first move. In the meantime nothing stops you from finding jobs that better suit your needs. "No thanks" is an acceptable answer to an employment opportunity.
angersock 11y ago
Hear hear! I'm currently trying to fix this culture at my current startup, and frankly it's rolling a boulder uphill. I'm not going to be here much longer, I don't think. Folks, don't don't don't sign these contracts if you actually care--they won't be easy to fix later.
thothamon 11y ago
I wait until I have an offer, then I ask to see the company's non-compete. Then, if the document says I can't contribute to other projects, I tell them I contribute to a number of open-source and other projects, and I need anything done on my own time to belong to me. I've done this two or three times, and have always gotten the agreement to be amended. Wait until you have an offer in hand. That is your moment of greatest leverage, when they are most invested in having you on board.
anonymaux 11y ago
I plan to leave my job in a few months because I want to work on an open source project unrelated to my job but possibly subject to the "land grab" IP contract I signed as other divisions in the company work on software in that genre. I live in California, but even if the provision is unenforceable I don't have the resources to fight a megacorp and I want to make a clean break. (This also isn't the only reason I'm leaving.) Looking for a new job is tricky. Being able to work on this and other open source projects is a non-negotiable requirement for me. Similarly, I want to work fewer hours and would be satisfied accepting proportionately lower compensation. How do I make those conditions clear and avoid wasting everyone's time? I have a very strong open source resume and finding a ordinary job is no problem. You want me on your team. I'm tempted to just quit outright then start the job search by putting out a full resume along with my conditions. Is that wise?
- matwood 11y ago
  Just state your requirements in a reasonable way. You'll quickly filter out non-OSS friendly companies, which given your post here looks like you would not want to work for anyway. The less work for less compensation is a harder nut to crack. From a companies standpoint it is hard enough to find people and if the people they do find are good, but only want to work 1/2 time then the company must find 2x as many.
lechevalierd3on 11y ago
Ironically my company block that DNS.
tlrobinson 11y ago
Also, if a company does threaten and/or actually sue a former employee (or worse, make statements like "If we're wrong, we'll win" [1]), they're going to permanently be on a lot of potential employees' shit list. [1] http://www.businessinsider.com/smule-ceo-shred-video-lawsuit-2015-9 http://www.businessinsider.com/smule-ceo-shred-video-lawsuit...
zyxley 11y ago
This kind of thing is what unions are for.
- fapjacks 11y ago
  Exactly! And every day it surprises me more and more that one such union doesn't exist for developers. I understand 100% the implied anti-authoritarian nature "a lot" of the members of this demographic exhibit, but I also think "a lot" of this demographic is smart enough to see past that to the benefits of unionizing. It's just crazy to me there isn't a Guild Of Function Writers And Machine Tenders.
ChuckMcM 11y ago
I get the angst, and share it, on the other side of the table is a company paying you for your "full time" employment, they want to believe they have paid for all your time. So the angst arises when you aren't really giving them all your time, you are keeping some for yourself to do things that are of interest to you and not in your employer's interest[1]. That is why they want you make a choice, either commit or don't, all in, or not. If you want to parcel out your time, then contracting is a much better way to do that, neither side feels like they are being taken advantage of. Of course there are IP issues, and one which I hope will someday be rationalized by a better IP policy and framework[2] but contracting helps there too. You take ownership of your own "overhead" (benefits, vacation plans, etc) and then you sell the time you have to work on things either to someone else for direct payment, or to yourself as an investment in a future revenue stream. [1] They would argue that if you have time to work on that you could have used that time to work further on your project they assigned you. Vacation and leisure, keeps you balanced so is in the employers interest. [2] And realize that currently 'time to exhausting all the hydrogen fuel in the Sun' is looking like it will happen first.
- joosters 11y ago
  The time I am committing to a company is in the hours per week that I am paid to work. There's 168 hours in a week, if you're not paying me for all of them, I can do what I like in the remaining time. Dedicating your whole waking life to a company is plain stupid.
  - btilly 11y ago
    There are different classes of employee. Your attitude is appropriate if you clock in, clock out, and are paid different amounts in different weeks if you show up for different lengths of time. However I'm guessing that you are paid a fixed salary and aren't clocked. And you aren't a contractor. In that case you're a professional employee. You legally have a working relationship with them 24x7. Which is why you're not paid overtime to take clients out to dinner, or answer a page in the middle of the night. But if that relationship always exists, who owns the intellectual property that you create away from the office? This is up to a combination of the contract you signed, and local laws.
btilly 11y ago
The truth of this post strongly depends on both where you live, and who you work for. If you live in New York, what this post says is absolutely true. Anything you do, on your own time, on your own equipment, belongs to your employer. And it sucks. I believe that this is a hidden drag on startups there. And it is one of the reasons why I do not want to live in New York any more. If you live in California, this post is mostly wrong on IP ownership. The exception is that if you're doing something that relates to your employer's business, then you've got a problem. Even if you didn't know it related. Which is a problem if your employer has a lot of irons in a lot of fires like Google, Amazon, Yahoo, and so on do. However it isn't a problem if you work for a small company.
- cortesoft 11y ago
  Well, this post was specifically complaining about working for large tech companies. I mean, it is right there in the headline of the post.
  - btilly 11y ago
    In that case the tech companies are hardly at fault for California law. Push comes to shove they don't generally assert their theoretical rights too aggressively in my experience. However their lawyers don't want to abandon any rights that they have without examining them on a case by case basis. The ones that I have see balance that out pretty well and do have a release process where they approve personal projects. If that balance doesn't appeal to you, then you can solve the problem by working for a smaller company where it is less of an issue.
CurtMonash 11y ago
When I had a startup, I put a "We own your brain" clause in the employment agreement. However, I also called it to the attention of everybody I hired, and encouraged them to carve out any exception they wanted. Every hire except a couple of pure secretary/office manager types had a carve-out. That said, I suspect that that's not a common way of doing things. About 30 years ago, I came up with it for a friend who was joining McKinsey, but had published a book based on her PhD thesis. They claimed to have never gotten that request before. But they also didn't object to granting it.

85 points by polmolea 11y ago

I thought that the way you solve this in the states is by setting up an LLC and copyrighting under your LLC all of the code you write during hours you are not working for the other company. Doesn't that provide adequate additional protection? The strict IP agreements I've signed usually exclude work done for other companies.

jfim 11y ago
Some contracts have a clause where you work exclusively for this employer.
- lighthawk 11y ago
  Yes, but if they enforce that, they might fire you but they won't be able to take your IP away. Not if they exclude the IP you produce for other companies as part of the IP agreement.
- binarycrusader 11y ago
  Often referred to as a 'moonlighting' clause and by lawyers as 'duty of loyalty'.
  - JustSomeNobody 11y ago
    Love how loyalty only works one way.
    - savanaly 11y ago
      When you sign up to work for the company, you agree to do X and they agree to pay you Y. You are disloyal to them if you don't do all or part of X (for instance, if X includes thinking up ideas for them, taking your really valuable ideas that you thought up while working for them and leaving and using them yourself), and they are disloyal if they don't pay you Y. Those are the terms, after all! So I don't see how loyalty only goes one way...
      - Karunamon 11y ago
        If I'm at home, on my own computer, on my own time, I am not "working for them".
      - JustSomeNobody 11y ago
        If they don't have an impressive QER, I get axed. That's what I mean.

codingdave 11y ago

If you sign a contract that makes all your ideas the property of the company you work for, that is a problem. But I suggest pushing back on that contract - ask them to take out those clauses. If they say no, you then get to decide if it is a deal-breaker for you or not. But I suspect most of the time, they will work with you.

vvanders 11y ago
I think you'll find for large tech giants(like referenced here) they won't budge unless you're Carmack or someone high profile.
iraphael 11y ago
>they will work with you Not so sure about that... Tech giants have the advantage of being able to pick from the best applicants out there. In the same way you could say "having these clauses is a deal breaker for me", it's very easy for them to say "NOT having them is a deal breaker for US". The difference is that if you refuse the offer, you still have to find a jobs elsewhere (and I suspect that most giants will have the same clauses by default). But if they refuse the offer, there is already someone being interviewed that will accept the clauses. Maybe I'm being pessimistic, but I think that unless these clauses are deal breakers for most developers out there, then this practice will continue to be done.
- codingdave 11y ago
  Maybe, but in that case HN seems like the perfect community to take a stand and start telling developers not to sign those contracts.
  - iraphael 11y ago
    True. And I applaud the effort. I just think that, in most cases, they won't work with you in this area. So when telling developers to take a stand, we should also prepare them for what is most likely going to happen when they do.
- 11y ago

rm_-rf_slash 11y ago

This model works perfectly fine in higher education, as does the idea that if you treat employees as people to be invested in and cut some slack when their life doesn't align perfectly with your plans, they reward you with creativity, energy, and loyalty. I like Elon Musk and the work that he does, but chewing out an employee for skipping out on work to witness their child's birth is more than enough reason to never work for a person like that.

aianus 11y ago
FWIW he explicitly claims he never did this (while admitting to other extreme behavior towards his employees): https://twitter.com/elonmusk/status/598065854736044032 https://twitter.com/elonmusk/status/598065854736044032 Frankly, I'm inclined to believe him given that he has five children of his own.

Terr_ 11y ago

> But for the duration of your employment, all your ideas belong to them. Only in certain states, and I only if you sign such a contract. Did the author actually read his contract and say: "Please remove this part"? I know California and Washington both have state laws limiting what companies can do in terms of taking ownership of your "outside" work.

johnward 11y ago
A lot of us work oustside of those areas. In my case we got acquired. My choice was to keep steady employement or become unemployed for some unknown time. I took the risk and signed. Then things like this happen:http://www.goodwinprocter.com/News/Press-Releases/2011/Court-Rules-IBM-Owns-Patents-Obtained-by-Former-Employee.aspx http://www.goodwinprocter.com/News/Press-Releases/2011/Court...
- brazzledazzle 11y ago
  Since that was written by the law firm representing IBM it's probably the most charitable interpretation you're going to get and I'm still disgusted by it.
  - astazangasta 11y ago
    Everyone involved in that story sounds like a terrible person. Some day very soon, I hope, the notion that an individual can own an idea and control its usage will be regarded as despicable. What an evil thought.
cbhl 11y ago
I've definitely had prospective employers say "no, we will not remove that part, because we've been burned by bad employees before".
jofer 11y ago
Good luck getting a company or "remove this part" of a contract. I've always been told very clearly and angrily that that was not up for discussion. My current employer technically forbids me from showing photographs of my dog to my mom. Naturally, no one would ever care if I did, but my contract explicitly considers any distribution of anything I produce that can be copyrighted (at work or not) an act corporate espionage.

caust1c 11y ago

Since it's inevitably brought up every time this topic arises: This is one of the reasons why California is still such a popular place to do business because the law explicitly nullifies those provisions in contracts. See California Labor Code Sec. 2870 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...

iraphael 11y ago
How does this work when companies have an "open" culture (aka: every employee has access to most of the codebase)? Wouldn't that meant a side project you are working on is, indirectly, a... > Result from any work performed by the employee for the employer?
- jsprogrammer 11y ago
  How does open access to the code base imply that side projects are work performed for an employer?
- bad_user 11y ago
  Even so you can only prove that by means of copyright, patents or trademarks, collectively known as "IP" laws and in spite of popular opinion, that's a hard thing to do.
7Figures2Commas 11y ago
The devil is in the details and it's worth reading the following text closely: Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. 2870 provides a lot of protection to employees who are very careful but a lot of employees are not careful enough to meet the criteria above.

kylnew 11y ago

Employers are, by default, going to look out for themselves. I'd argue that the onus is on the developer to understand and fight for better contracts. If more developers were taking these matters seriously then companies would have to respond. However, I doubt they'll be making the first move. In the meantime nothing stops you from finding jobs that better suit your needs. "No thanks" is an acceptable answer to an employment opportunity.

angersock 11y ago

Hear hear! I'm currently trying to fix this culture at my current startup, and frankly it's rolling a boulder uphill. I'm not going to be here much longer, I don't think. Folks, don't don't don't sign these contracts if you actually care--they won't be easy to fix later.

thothamon 11y ago

I wait until I have an offer, then I ask to see the company's non-compete. Then, if the document says I can't contribute to other projects, I tell them I contribute to a number of open-source and other projects, and I need anything done on my own time to belong to me. I've done this two or three times, and have always gotten the agreement to be amended. Wait until you have an offer in hand. That is your moment of greatest leverage, when they are most invested in having you on board.

anonymaux 11y ago

I plan to leave my job in a few months because I want to work on an open source project unrelated to my job but possibly subject to the "land grab" IP contract I signed as other divisions in the company work on software in that genre. I live in California, but even if the provision is unenforceable I don't have the resources to fight a megacorp and I want to make a clean break. (This also isn't the only reason I'm leaving.) Looking for a new job is tricky. Being able to work on this and other open source projects is a non-negotiable requirement for me. Similarly, I want to work fewer hours and would be satisfied accepting proportionately lower compensation. How do I make those conditions clear and avoid wasting everyone's time? I have a very strong open source resume and finding a ordinary job is no problem. You want me on your team. I'm tempted to just quit outright then start the job search by putting out a full resume along with my conditions. Is that wise?

matwood 11y ago
Just state your requirements in a reasonable way. You'll quickly filter out non-OSS friendly companies, which given your post here looks like you would not want to work for anyway. The less work for less compensation is a harder nut to crack. From a companies standpoint it is hard enough to find people and if the people they do find are good, but only want to work 1/2 time then the company must find 2x as many.

lechevalierd3on 11y ago

Ironically my company block that DNS.

tlrobinson 11y ago

Also, if a company does threaten and/or actually sue a former employee (or worse, make statements like "If we're wrong, we'll win" [1]), they're going to permanently be on a lot of potential employees' shit list. [1] http://www.businessinsider.com/smule-ceo-shred-video-lawsuit-2015-9 http://www.businessinsider.com/smule-ceo-shred-video-lawsuit...

zyxley 11y ago

This kind of thing is what unions are for.

fapjacks 11y ago
Exactly! And every day it surprises me more and more that one such union doesn't exist for developers. I understand 100% the implied anti-authoritarian nature "a lot" of the members of this demographic exhibit, but I also think "a lot" of this demographic is smart enough to see past that to the benefits of unionizing. It's just crazy to me there isn't a Guild Of Function Writers And Machine Tenders.

ChuckMcM 11y ago

I get the angst, and share it, on the other side of the table is a company paying you for your "full time" employment, they want to believe they have paid for all your time. So the angst arises when you aren't really giving them all your time, you are keeping some for yourself to do things that are of interest to you and not in your employer's interest[1]. That is why they want you make a choice, either commit or don't, all in, or not. If you want to parcel out your time, then contracting is a much better way to do that, neither side feels like they are being taken advantage of. Of course there are IP issues, and one which I hope will someday be rationalized by a better IP policy and framework[2] but contracting helps there too. You take ownership of your own "overhead" (benefits, vacation plans, etc) and then you sell the time you have to work on things either to someone else for direct payment, or to yourself as an investment in a future revenue stream. [1] They would argue that if you have time to work on that you could have used that time to work further on your project they assigned you. Vacation and leisure, keeps you balanced so is in the employers interest. [2] And realize that currently 'time to exhausting all the hydrogen fuel in the Sun' is looking like it will happen first.

joosters 11y ago
The time I am committing to a company is in the hours per week that I am paid to work. There's 168 hours in a week, if you're not paying me for all of them, I can do what I like in the remaining time. Dedicating your whole waking life to a company is plain stupid.
- btilly 11y ago
  There are different classes of employee. Your attitude is appropriate if you clock in, clock out, and are paid different amounts in different weeks if you show up for different lengths of time. However I'm guessing that you are paid a fixed salary and aren't clocked. And you aren't a contractor. In that case you're a professional employee. You legally have a working relationship with them 24x7. Which is why you're not paid overtime to take clients out to dinner, or answer a page in the middle of the night. But if that relationship always exists, who owns the intellectual property that you create away from the office? This is up to a combination of the contract you signed, and local laws.

btilly 11y ago

The truth of this post strongly depends on both where you live, and who you work for. If you live in New York, what this post says is absolutely true. Anything you do, on your own time, on your own equipment, belongs to your employer. And it sucks. I believe that this is a hidden drag on startups there. And it is one of the reasons why I do not want to live in New York any more. If you live in California, this post is mostly wrong on IP ownership. The exception is that if you're doing something that relates to your employer's business, then you've got a problem. Even if you didn't know it related. Which is a problem if your employer has a lot of irons in a lot of fires like Google, Amazon, Yahoo, and so on do. However it isn't a problem if you work for a small company.

cortesoft 11y ago
Well, this post was specifically complaining about working for large tech companies. I mean, it is right there in the headline of the post.
- btilly 11y ago
  In that case the tech companies are hardly at fault for California law. Push comes to shove they don't generally assert their theoretical rights too aggressively in my experience. However their lawyers don't want to abandon any rights that they have without examining them on a case by case basis. The ones that I have see balance that out pretty well and do have a release process where they approve personal projects. If that balance doesn't appeal to you, then you can solve the problem by working for a smaller company where it is less of an issue.

CurtMonash 11y ago

When I had a startup, I put a "We own your brain" clause in the employment agreement. However, I also called it to the attention of everybody I hired, and encouraged them to carve out any exception they wanted. Every hire except a couple of pure secretary/office manager types had a carve-out. That said, I suspect that that's not a common way of doing things. About 30 years ago, I came up with it for a friend who was joining McKinsey, but had published a book based on her PhD thesis. They claimed to have never gotten that request before. But they also didn't object to granting it.